Attestation in India

Introduction:

A property may be transferred either orally, that is, by delivery of

possession or, through a written document. Where a property is transferred
through a written document, the transferor is said to execute the deed/
document of transfer. Such transferor is called the executant.

It is necessary under the law that two persons must affirm, or become
witness to the fact that executant and nobody else, has written or signed
the deed of transfer. This act of giving evidence of becoming witness is
called attestation and when these persons have done so, the deed is said
to have been attested. The witnesses are called the attesting witnesses.

Object of Attestation

Attestation of a document ensures the authenticity or truthfulness of its

execution. The object of attestation is twofold:

* It confirms that executant and none else has executed the document

* It also confirms that the executant have executed the document with free
consent and there was no force, fraud, or undue influence.

There is no other purpose behind attestation. By attesting documents the

attesting witnesses do not confirm that they have knowledge of the
contents of that document; nor they are supposed to have given consent to
the transfer under the document.

Meaning of Attestation:

As per the definition as has been mentioned in the Wharton Law Lexicon
the following is the meaning of Attestation:

‘Attestation is the signing by a witness to the signature of another of a

statement that a document was signed in the presence of a witness. ‘

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The meaning of attestation as has been given by Justice C.K. Thakar in,’
The Law Lexicon” with the references made to the various case laws are as
follows:

‘Attestation is meant the signing of a document to signify that the attester is

a witness to the execution of the document.’

As held in the case of Seth Beni Chand vs. Kamla Kunwar –

“It is the act of signing by a witness to the signature of another of a

0statement that a document was signed in the presence of such witness.”

Distinction between attestation and mere signing of a document:

As held in the case Durga Dutt vs. Chandanu-

“Attestation implies something more than the mere putting down of a

signature on a will in the presence of the testator by a person who has
seen the testator sign. The legislature makes a distinction between mere
signing and attesting. Attesting is more than merely signing a document for
a particular purpose, the purpose being to testify to the signature of the
executant. The signing by a witness to the signature of another of a
statement that a document was signed in the presence of the witness.”

Whether it is necessary to prove attestation:

The Criminal Procedure Act, 1865, section 7 (applicable both to civil and
criminal cases), renders it unnecessary to prove by the attesting witness
any instrument to the validity of which attestation is not requisite, and such
instrument may now be proved by admission, or otherwise, as if there had
been no attesting witness.

What all documents are attested:

“Wills and codicils, warrants of attorneys and cognovits, agreements with

crews of foreign going ships, and the bill of sale require attestation.”

In The Transfer of Property Act in Section 3 the definition of these words –

“Attested” in relation to an instrument, means and shall be deemed always

to have meant, attested by two or more witnesses each of whom has seen

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the executant sign or affix his mark to the instrument or has seen some
other person sign the instrument in the presence and by the direction of the
executant, or has received from the executant personal acknowledgement
of his signature or mark, or of the signature of such other person and each
of whom has signed the instrument in the presence of the executant; but it
shall not be necessary that more than one of such witnesses shall have
been present at the same time and no particular form of attestation shall be
necessary.”

The definition includes the acknowledgement of the signature by the

executant as sufficient in cases where the person who signed as an
attesting witness did not see the actual execution of the deed.

Why should attestation be done:

As held in the case of Shamu Patter vs. Abdul Kadir, the requirement of
attestation to a document was stated by the Privy Council in this case to be
that,

‘the barriers against perjury and fraud’ ; to use the language of the master
of the rolls in Ellis vs. Smith, ‘should not be removed upon speculative
considerations.”

Role of Attestation

The role or significance of attesting a document is therefore to prove the

validity of that document. The attestation of persons to a document is to
ensure that there is no fraud or other vitiating circumstances in the
execution of the document.

Whether parties to deed can attest:

As stated in the following case Seal vs. Claridge

“A decision under the bills of sale, 1878, constructing section 8 and section
10 of the Bills of Sale Act, it was laid down by the court that,’ the common
sense of mankind has always rejected the notion that the execution of
every bill of sale should be attested by a solicitor of the Supreme Court.
The grantee in that case under the Bill of sale was a solicitor and the
signature of the grantor was attested by the grantee and the point for

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consideration was whether the bill could be treated as having been validly
attested. It was held that the solicitor was a grantee, under the bill and
could not be a valid attesting witness as he was a party to the document,
though not the executant.’ ”

The word ‘attestation’ implies, as said the Lord Chancellor:

“ The presence of some person, who stand by but not a part to the
transaction. The view which I take seems to be confined by the
circumstances that attestation is unnecessary, unless it is required by an
instrument creating a power or by some statute. “

As held in Freshfield vs. Reed, (1842), it follows from that case that “the
party to an instrument cannot attest it.”as considered in some of the
decisions of the Indian Courts such as in the case of Durga Din vs. Suraj
Bakhan:

Here before a full bench of the Lucknow High Court the question of a valid
attestation of a mortgage executed benami but attested by a person who
actually advanced money was raised. It was held that though the person
who actually advanced the money was interested in the transaction as he is
to get the ultimate benefit of the mortgage, he was not a party to the
document and therefore the principle that a party to a document cannot be
a valid attesting witness did not apply. A benamidar, it is pointed out, was
the legal mortgagee and he was the person who was in the legal sense a
party to a deed. Merely because a person is interested in a
document/transaction, he is not on that ground disentitled to be a valid
attesting witness.’

Attestation by a literate and illiterate person:

Gamathi Ammal vs. Krishna Iyer

If in the case of execution of a document by a literate man, who can write

his own name, it is deemed necessary by the legislature to have two or
more witnesses, it is at least equally essential to have two independent
witnesses when the man is illiterate and cannot write his own name which
is written for him by another.

Rajani Kanta vs. Panchamnanda

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A mortgage bond was executed by an illiterate person and there was no
seal or thumb impression of the mortgage on the deed. It was held that the
scribe, who executed the document for or on behalf of a mortgager, was
not competent to attest his own signature as an attesting witness, even
assuming that the subscription of the name as a scribe amounted to
attestation within the meaning of section 59 of Transfer of Property Act.

Essential Conditions of a valid attestation:

The next term which comes to mind while defining attestation, is the term
attest.

‘To attest is to bear witness to a fact. Briefly put, the essential conditions of
a valid attestation under Section 3 of the Transfer of Property Act, 1882,
are:

* Two or more witnesses have seen the executant sign the instrument or
have received from a personal acknowledgement of his signature from him.

* With a view to attest or to bear witness to this fact, each of them has
signed the instrument in the presence of the executant.

It is essential that the witness should have put his signature ‘ amino
atestandi’ , that is for the purpose of attesting that he has seen the
executant sign or has received from a personal acknowledgement of his
signature, and that the signature has been given with the intention of being
the signing as under the capacity of an attesting witness

Intention of attesting party:

M.L. Abdul Jabbar Sahib vs. Venkata Shastri

the intention of an attesting witness had to be clear. If a person put his

signature on a document for a purpose, other than to validate it, e.g., to
certify that he is a scribe or an identifier or a registering officer, he is not an
attesting witness.

* Each attesting witness must:

1. See the executant signing the instrument(document/deed) or fixing his

mark( thumb impression) on it, or,
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2. See some other person signing the instrument in the presence of and
under the direction of executant, or,

3. Has received from the executant a personal acknowledgment of his

signature or mark or of the signature of such other person.

The essentials of a valid attestation as have been mentioned in Section 68

of The Evidence Act are as follows:

* Seen the executant sign the deed in presence of the witnesses.

* A person who though he is present and sees the execution, does not sign
in the capacity of an attesting witness, although his name is on the
document.

Shamu Pattar vs. Abdul Kadir

The witness is to see the execution or receive a personal

acknowledgement of the execution from the executant and to attest the fact
of execution.

* It is generally agreed that the signature of the registering officer on

admission of execution by the maker, makes him an attesting witness, but
the officer must have affixed his signature in the presence of the executant.

* An illiterate person may be an attesting witness by offering his mark or

finger impression.

* It is not necessary that all the attesting witnesses should be present

together( as held in the case of Dalichand vs. Loti Sakharam) and no
particular form of attestation is required.

* If a deed is attested by one who at the time is incompetent to attest, the

rule is not satisfied by calling him; and such form of attestation is void.

Who can attest?

Any person who is competent to contract, can also attest. Any two persons
who are of the age of majority and possess sound mind, can attest as
attesting witnesses. Since attestation is a special act of certifying the
signature of the executant, any other person, e.g.. The scribe or the typist

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cannot be presumed to have attested the document. However a scribe or
writer or typist may perform dual role also. In that case scribe shall put his
signature/name mentioning especially that he is also attesting the
document. A person who has been called simply to identify the executant
and who has not seen the executant signing the document , cannot be
treated as an attesting witness.

Similarly a sub-registrar or a registering officer who registers the document,

cannot be presumed also to have acted as an attesting witness. But the
sub-registrar too can perform the double role and act as attesting witness
provided he also has the intention to act as the attesting witness and has
either personally seen the executant signing the document or the executant
has accepted the execution before him.

A party to a transaction cannot be an attesting witness. The parties to a

transfer are transferor and transferee. The transferee cannot attest the
document. If there are several transferors or transferees then neither any
one of the transferees or any one of the transferors may act as attesting
witness. Attestation by a party to a transaction is invalid.

However, a person who is not a party to the transaction but is a party

interested in the transaction he or she is then competent to become an
attesting witness.

Who is an Attesting Witness

Under Section 63(c) of The Succession Act, an attesting witness is one

who signs the document in the presence of the executant after seeing the
execution of the document or after receiving a personal acknowledgement
from the executant as regards the execution of the document.

What is meant by attested copy

An attested copy is a verified transcript of a document.

A person who has seen a party execute a document or sign a written deed,
he then subscribes his signature or the purpose of identification and proof
at any future period.

What is attesting

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Section 68 of the Evidence Act, 1872 deals with the proof of the execution
of documents required by law to be attested. It provides that such
documents shall not be used as evidence until at least one attesting
witness has been called to prove the execution, if there be an attesting
witness alive and subject to the process of the court and capable of giving
evidence.

What is the form of Attestation

The Transfer of Property Act does not prescribe any formality for
attestation. Signature of the attesting witness is sufficient. Signature need
not be at any particular place in the deed. Attesting witness may sign
anywhere on the deed/ document by putting their signatures(when literate)
and their thumb impressions(when illiterate). It is also not necessary that
both the attesting witnesses should sign the deed simultaneously. Even
when the attesting witnesses sign and attest the deed separately, it
remains to be valid.

Sant Lal vs. Kamla Prasad

However, since the witnesses testify to the executant of the deed it is

necessary that they must sign after the executant has signed it.

Thus the concept of attestation is an essential and vital ingredient in the

Indian legal structure as it secures the authenticity of various documents
and evidence.